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Opinion: Ontario teachers should be required to know basic math—even if it takes the notwithstanding clause to do it

Commentary

In the waning days of 2021, the Ontario Superior Court (Divisional Court branch) ruled that the province’s government violated the constitutional rights of Ontario teachers from ethnic minority backgrounds. The offending, unconstitutional, discriminatory policy? Requiring prospective elementary and secondary school teachers to pass a Grade 9 mathematics test. This untenable judicial intervention in a contested area of social policy presents yet another occasion for a justified recourse to the notwithstanding clause, a constitutional mechanism designed precisely with such a situation in mind.

By way of background, in 2019, alarmed by falling student math scores, the Ford government introduced legislation to require teachers to pass a Mathematics Proficiency Test (MPT). It is emphatically not a difficult test. It consists of 75 multiple choice questions, assessing basic math skills taught in Grades 3 to 9—in other words, skills which any Ontario student is already required to master to graduate—as well as mathematics pedagogy. The test was designed as a two-hour test, but test-takers are allotted three hours to complete it. Those who do not pass the MPT at the first attempt are allowed an unlimited number of retakes. A score of 70 percent on both the mathematical and pedagogical questions is required to pass. Unsurprisingly, over 85 percent of all test-takers manage to pass it.

One might well think that it is perfectly reasonable to require teachers to know at least as much as their students, given that any Ontario teacher can be required to teach mathematics. Not so for the Ontario Teacher Candidates’ Council, an organization established with the help of the Ontario Teachers’ Federation to oppose the test. It launched a constitutional challenge against the legislation, arguing that the MPT was discriminatory because it adversely impacted racialized teacher candidates. To put it more bluntly, the Ontario teachers’ union was arguing that teachers from minority backgrounds could not be expected to know how to do basic math.

The Divisional Court agreed with this remarkable proposition. Three judges ruled that mandatory teacher competency testing in mathematics led to a “significantly lower pass rate for racialized teacher candidates” and “places additional burdens on racialized teaching candidates, imposes burdens and denies benefits in a manner that has the effect of reinforcing or perpetuating disadvantage.” It held that the MPT violated section 15 of the Canadian Charter of Rights and Freedoms, which provides that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” The court struck down the legislation and ordered the Ontario College of Teachers to certify teachers who did not pass the MPT, but who otherwise met the requirements.

Fortunately, the notwithstanding clause remains a ready remedy for such temerarious excesses of judicial power. As the Supreme Court of Canada explained a 1998 decision, “s. 33, the notwithstanding clause, establishes that the final word in our constitutional structure is in fact left to the legislature and not the courts.” Previously, the Ford government had reason to invoke s. 33 in response to a court ruling that struck down restrictions on third-party political spending.

The use of the notwithstanding clause does not amount to the abdication of constitutional rights, as critics often claim. Rather, the clause is an integral part of the Charter that permits a legislature to express its disagreement with judicial interpretations of rights, and to act in accordance with a reasoned, alternative conception of the meaning of a right. Our democratically elected representatives may reason that properly interpreted, section 15 requires governments to respect persons as equals, in contrast to the Divisional Court’s view that a math test is discriminatory purely because it leads to differential impacts.

Ironically, for many years after the Charter’s enactment, the Supreme Court of Canada supported this very conception of equality rights, according to which the central question was whether a particular law demeans a person’s dignity. Can it truly be argued that expecting teachers to demonstrate their competence in basic math—an essential occupational requirement—is demeaning of their dignity? To ask the question is to answer it.

Some critics of the notwithstanding clause also contend that invoking it without appealing the relevant court ruling is illegitimate. But where it is the courts’ own jurisprudence that engenders a flawed interpretation of Charter rights, expecting an appeal to be undertaken may be both futile and a concession to the very judicial supremacist thinking that s. 33 was meant to counterbalance.

The Divisional Court’s decision was in many ways the logical consequence of recent Supreme Court precedents, which it was legally bound to apply. In a 2020 case called Fraser, the Supreme Court held that courts may find a law to be discriminatory purely on the basis of their “adverse effects,” without regard to the intent of the law or to the government’s conduct. This approach, as one distinguished appeal court judge has suggested, adopts a “reductive” conception of discrimination that may impugn virtually any law, and stymies the power of governments to act for the common good.

Spurred by that logic, the Divisional Court concluded that the MPT constituted discrimination and that “requiring a math course for B.Ed. programs would be significantly less impairing of equality rights.” In doing so, it relied on readings of contested social science evidence—which may also prove difficult to appeal, thanks to a 2013 ruling from the Supreme Court that appeal courts should generally defer to lower courts’ determinations of “social and legislative facts.”

But it is not unreasonable to require teachers to prove they know as much math as a grade nine student, and it is patronising to suggest that teachers from minority backgrounds cannot be expected to handle a basic math test. Here, the Ontario legislature made a reasoned judgment for the common good, seeking to uphold pedagogical standards that ultimately benefit students of all backgrounds. When the courts insist on undoing such judgments on the basis of a flawed interpretation of a Charter right, the legislature may be duty-bound to invoke the notwithstanding clause.

Howard Anglin: In defence of NIMBYism, and other notes for the New Year

Commentary

A motley of items, mostly light, mostly from the month that was.

Is there a more optimistic phrase than “First Annual”? Living up to their informal billing, this year’s first annual Roger Scruton Lectures, held at Oxford University’s Sheldonian Theatre, were cause for optimism. Of the four, the most interesting was by Marwa Al-Sabouni, the young Syrian architect and writer. She challenged us to reject modern “Factory” cities and “Factory” villages and build interdependent communities based on rural rather than urban principles, where families can build social fabric over generations.

The Q&A after touched on the problem du jour of the lack of affordable housing and the challenge of NIMBYism. NIMBYism gets a bad rap. Yes, it has a selfish form, but often it is just the oikophilic instinct to protect one’s community and one’s home from sudden change. Jane Jacobs was a NIMBY when she fought against developing Greenwich Village, and thank goodness for it. At one point Douglas Murray suggested a way to work with rather than against the NIMBY instinct when he described Roger once saying that no one would object if we build another Bath. Instead of forcing obtrusive development onto resistant communities, we should make new developments so attractive that even the most hardened NIMBY finds them hard to oppose. Instead of glass and steel condo towers, add density with more row houses like Brooklyn, stylish apartment blocks like Rome or Copenhagen, and infill mews like London or Washington. It’s probably not more expensive than the dull “units” we build now, and if it is, so be it. We pay for building ugly on the cheap in more important ways than money.


I’m writing this from my Air Canada flight back from Heathrow to Vancouver, where I just finished re-watching Elia Kazan’s “On the Waterfront.” Kazan, a refugee from Ottoman Turkey knew something about oppression. He also understood honesty and gratitude. When Kazan was asked to testify before the House Un-American Activities Committee, like Brando’s character in the movie he did so truthfully. Good for him. Like most former communists turned anti-communist, he was a romantic but committed patriot. Joe McCarthy could be a crude bully, but the other side was standing with Joe Stalin. When the Academy presented Kazan with an honorary Oscar in 1999, some churlish progressives like Tim Robbins and Susan Sarandon refused to stand and applaud. I’m pretty sure Kazan, a far greater artist than any of them, didn’t mind. No doubt he knew what fine Stalinist propagandists they would have made. Besides, he’d already answered his critics in “On the Waterfront.”


Returning to Canada for the holidays, I left a country where the parliamentary spirit is still alive, for one in which no pulse has been detected for some time. Shortly after my plane took off, 99 Conservative Party MPs (and 8 Labour MPs, including former Labour leader Jeremy Corbyn) voted against the government’s proposal to require proof of vaccination for nightclubs and large gatherings. For context, when I left in early December there were almost no restrictions in the UK despite the ascendency of the Omicron variant: no vaccine passports, no distancing, no limits on restaurants, pubs, or gyms, and no mask requirements except in some shops and on some public transit.

I landed in a country in which vaccination rates are significantly higher than in the UK, but where the political debate over restrictions is almost non-existent. I have my own opinion as to the best COVID-19 policy this time, but whatever restrictions are imposed, it would be reassuring to know that they had been thoroughly debated. 99 MPs is a little over a quarter of the Tory caucus. Imagine 44 members of the federal Liberal Party voting against a Trudeau plan on, forget Covid, on anything (I’ll pause while you stop laughing). It may be time to declare the parliamentary patient here dead and figure out how to dispose of the decaying corpse.


As a former Time Person of the Year (2006), I’m fine with this year’s choice of Elon Musk. It’s in Time’s tradition of recognising Captains of Industry like Mark Zuckerberg (2010), Jeff Bezos (1999), Andrew Grove (1997), and Harlow Curtice (1955). Of course, Time copped out by naming his main competitors, the vaccine scientists, their “Heroes of the Year,” which is like winning the magazine’s Intercontinental belt.

It also means that, despite being the most powerful man in the world for at least the last five years, President Xi again missed out. He can console himself that he is in good company among Chinese leaders: somehow Mao never made Man of the Year (oddly, Deng Xiaoping did twice, while Chiang Kai-Shek and his wife were co-honourees). Let’s hope it stays that way. If Xi does eventually win, it is probably going to be for a year the rest of the world would prefer to forget.


A Christmas present from an old friend: a collection of poetry and short prose edited by Lieutenant-General Sir Tom Bridges in 1940 for British soldiers fighting overseas. It’s a splendid volume, much superior to anything you would get in a Canadian university literature course today. There’s everything you would hope for—Henry’s St Crispin’s Day speech, Newbolt’s The Fighting Téméraire, Lovelace’s To Lucasta, Going to the Wars, and plenty of that memorable and metrical but now-neglected Victorian verse that used to fire childhood imaginations—think of Anne Shirley’s hazardous re-enactment of the Lady of Shallot’s final voyage. It also includes some idiosyncratic choices, such as Robert Louis Stevenson’s pugnacious paean to Admirals and prize-fighters and a ditty by Robbie Burns with the eyebrow-arching title of Cock up your Beaver. One can only imagine the punctiliously correct selection of Can-Con with which our government would arm our soldiers today. No doubt it would be enough to encourage them to follow Kipling’s bleak advice to a wounded Tommy Atkins to “Jest roll to your rifle and blow out your brains / An’ go to your Gawd like a soldier.”